The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1887-03-01
In the Supreme Court of the Hawai-
ian Islands--In BAnco. january
Term. 1887
HI. AGSEw VS.. JoHN RICHARDSON.

OA bAO 4OAtOnAuS blll VI SASCEIoAO
taken by the defendant at the trial in
last July term before the Chief JUS
tee
''This case is a suit upon promis-
sorry note given by the defendant to
plaintiff in part payment for horse
sold by plaintiff to the defendant.
''The defendant plead general de
NAL to the declaration.
''The defendant offered evidence,
tending to show that the horse had
CHAMBERS. prior to, at the time OF, and
subsequent to the sale, and finally
died Of it
NsThe horse was sold by written bill
of sale containing no express war
ranty.
defendant offered the evidence of
John Richardson and Manuel Ross as
to conversations and statements made
by and between plaintiff and defend
ant at the time of making the bargain
of sale
"The Court ruled that this evidence
was not admissible to shew special
warranty, or to show negative deceit
or legal fraud; to which the defend
ants counsel duly excepted"
THE jury rendered verdict for the
plaintiff, to which verdict the defend
ant duly exceped as against the law
and the evidence"
1t appeared from the testimony at
the trial, that the plaintiff and defend
ant had been in negotiation for the
sale and purchase of the horse in
question some time previous to the
actual sale, but the negotiation had
been closed by the defendant declin
ing to complete.
The plaintiff then sent the horse to
Wailuku, Island of Maui, where the
defendant resided and kept livery
stable; the horse was kept at such
stable for stud purposes, and after the
sale the horse covered five mares be
longing to the defendant, the mares
had colts which were alive and run
ming with their mothers at the time
of the trial.
The defendant came to Honolulu in
the month of April, 1888, and again
entered into negotiations with the
plaintiff for the purchase of the horse
which resulted in sale being effected,
and the following bill of sale was
given by the plaintiff:
S1100. Honolulu, May /, 1888.
This is to certify that l have this
day sold to John Richardson of Wal
luku, Maui, my black stallion known
as ''Blackbird" at present on the Isl
and of Maui, for and in consideration
of his notes drawn in my favor at
three, six, nine and twelve months
amounting in all to eleven hundred
dollars and in which amount includes
an open buggy, three spring, made by
NJ. T. Holmes of San Francisco. Also
one set of single buggy harness now
in use with "Blackbird" on Maui"
The horse remained in defendants
possession until the latter end of 1885,
when it was shot, being then badly
affected with planda1s, which ulsease,
II was contended on behalf of the de-
PENDANT existed at the time of sale.
The evidence, the subject of the ex-
ceptions is as follows:
The defendant testified: Il no
''ticed the horse in the stables, he had
running at the nostrils whenever l
saw him. I lived in another part of
''the town. At the time of the final
negotiations told Agnew the horse
chad running at the nose, and that he
''was sick. He said the horse had
nothing more than simple cold,
caught on the voyage. Il. c. to Maui
''that was all said about horses
''health."
Manuel Ross testified: Il heard the
conversation between Agnew and
Richardson at the time of sale. Rich
''ardson said horse was sick. Agnew
''said it was not Richardson said it
chad discharge from the nose Ag-
new said it must have caught cold
''going up on the steamer"
This evidence was admitted against
the objection of the plaintiff.
The presiding Justice instructed
the jury (iHter ALA that if they found
the horse was diseased with CHAMBERS
at the time of sale and that thereby
the horse was of no value, they should
find for the defendant, but held that
the evidence before set out was not
admissible to shew a special warranty
in face of the contract put in, or to
shew negative deceit or legal fraud.
Counsel for the defendant contends
that the said evidence was admissible
to prove false representation made
by the plaintiff to the defendant at
the time of the sale and false within
the plaintiffs knowledge, or that if
the plaintiff did not know the state of
the horses health at the time, yet, he
took upon himself to make repre-
sentation to the defendant, upon the
faith of which the defendant acted
and that therefore the plaintiff was
bound though his mistake was per
fectly innocent. (Ainslie vs.. Medley
colt, 9 Yes. Jr. 81
Counsel also contends that the al
legged misrepresentation amounts to
fraud and therefore that the contract